Lindsey Graham wonders: Should bloggers have full First Amendment protections?

posted at 2:01 pm on June 5, 2013 by Allahpundit

Via National Journal. He’s talking specifically about constitutional protections for revealing national-security information, not for garden-variety commentary, in case that makes you feel better. Why he’d draw a distinction even on those grounds, though, is beyond me. If you’re publishing, whether in the New York Times or on your website, you’re publishing. That’s what “freedom of the press” is aimed at. But then, this is the same guy who’s been known to grumble that in a perfect world we’d be able to regulate Koran-burning because it interferes with the mission of the U.S. military overseas. The First Amendment’s never been his strong suit.

“Who is a journalist is a question we need to ask ourselves,” said U.S. Sen. Lindsey Graham, addressing reporters from the corner of his second-floor office on Hampton and Huger streets. “Is any blogger out there saying anything — do they deserve First Amendment protection? These are the issues of our times.”…

South Carolina’s Graham is the lead GOP sponsor of the bill. He’s working with Democratic U.S. Sen. Chuck Schumer of New York and six other senators, three Democrats and three Republicans.Graham didn’t give specifics on the law, but said it would make it more difficult for the government to get a reporter’s notes and strike the right balance between freedom of the press and protecting national security interests…

“You can sit in your mother’s basement and chat away, I don’t care. But when you start talking about classified programs, that’s when it gets to be important,” he said during a Free Times interview. “So, if classified information is leaked out on a personal website or [by] some blogger, do they have the same First Amendments rights as somebody who gets paid [in] traditional journalism?”

“Who is a journalist?” isn’t the question we need to ask ourselves. “Who’s engaged in journalism?” is better. If someone hands you classified info and you print it for the world’s consumption, guess what? You are. That’s essentially what James Rosen did and virtually the entire establishment media, left and right, is outraged about Eric Holder’s attempt to treat him as a quasi-criminal to find out who was talking to him. Why should a blogger be treated differently? More from Andrew Ferguson on the media-shield law that Graham’s proposing:

More than 50 news organizations (Reuters, Gannett, the New York Times, and so on) signed a letter protesting the AP subpoenas, and of course journalism guilds like the Society of Professional Journalists are using the subpoenas to agitate on behalf of the Free Flow of Information Act—and for the same reason guilds always lobby the government for special privileges. The act will go a long way toward establishing a government-sanctioned journalistic class. There will be, on the one hand, approved reporters who are immune to certain kinds of governmental inquiry, and, on the other hand, everyone else, those less exalted citizens who, faced with the same governmental inquiry, would just have to suck it up. The act is a classic restraint of trade, protecting favored journalists from the pressure of competitors who lack the proper credential.

We don’t doubt there are admirable libertarian impulses behind the shield law, too, if it is intended to encourage the exposure of illicit uses of government power. But like so many libertarian impulses, admirable or otherwise, this one ends up extending rather than restraining the reach of the state’s sweaty and thick-fingered hand. Any shield law must turn on definitions. Who’s a journalist? Well, says one version of the act, a journalist is “a person who, for financial gain or livelihood, is engaged in journalism.” Leave aside for the moment why anyone in his right mind would go into journalism “for financial gain.” The next question is, And what is journalism? It is “the gathering, preparing, collecting” etc. etc. “or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” These are definitions without practical meaning. They will be refined on the fly, applied willy-nilly, by either unelected judges or self-interested legislators.

I understand why Democrats would want special constitutional privileges for establishment media. I can’t fathom why a Republican would, although I also can’t fathom why a Republican would support the Gang of Eight bill or an opaque intervention in Syria and yet Graham supports those too. Treat this story as a companion to the story about the IRS “losing” its receipts, in fact: In both cases, you have government proposing different standards of behavior for itself, or for a favored special interest, and for the public at large. In the IRS’s case, it’s about accounting and accountability; in this case, it’s about the First Amendment itself. This can’t go on.

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